Tonight, President Obama announced sweeping
administrative reform of immigration law. His efforts raise important questions
about the legal basis for his actions and its implications for the future of
immigration law and the separation of powers.

Over the next several days, we will convene an online symposium here, on Balkinization, to discuss
and debate these issues with a group of leading immigration law and
constitutional law scholars and litigators.
While much ink has been spilled in recent months over the legality of
administrative immigration relief, much of that writing has been necessarily
speculative. Now we know the basic
facts. The President’s administration
will exercise prosecutorial discretion to defer the removal of many parents of
U.S. citizens and lawful permanent residents, making them eligible for work
authorization for up to three years at a time.
This action is estimated to encompass 3.3 million unauthorized
immigrants. When combined with the last
round of administrative relief—the Deferred Action for Childhood Arrivals
Initiative—roughly 5 million persons, or 40 percent of the unauthorized
population, may be affected.

As the President’s announcement made clear,
however, there will be limits to his exercise of discretion. The parents of DACA recipients will not be
included. This is an extremely important
fact—not just as a political matter, but also, potentially, as a legal one. Over the course of recent debate, writers on
all sides of the issue have struggled mightily to avoid a central question about
the exercise of prosecutorial discretion in immigration law: how far is too
far? Opponents have argued that the
president has crossed the line into unconstitutionality; defenders have
contended that he has not. But almost no one has been willing to say where that
line is located. Tonight that
changed. An opinion from the
Office of
Legal Counsel, made
public by the administration, lays out the legal basis for the President’s
actions and provides scholars with new theories of executive power and
prosecutorial discretion to explore.
Importantly, that opinion concludes that, while the President has
authority to grant relief to the parents of US citizens and LPRs, the President
lacks legal authority to grant such relief to the parents of DACA
recipients.

We are among those who believe the basic
parameters of executive discretion in immigration law permit the President to
take the steps he has.[1] But the
OLC opinion raises important questions about the limits of discretion, as well
as a new gloss on the legal issues—the legal claim that the President’s actions
are consistent with congressional priorities as reflected in the Immigration and
Nationality Act.

The combination of the President’s sweeping
action with an official government defense of the program’s legality—something
that did not accompany DACA—makes now a crucial moment to discuss two
fundamental questions that have long been embedded in the debate over
administrative relief. First, the
question of scope: of how the size and composition of the group offered
administrative relief bears on relief’s legality. Second, the question of how the form of
relief—that is, the precise benefits that are conferred through administrative
action—affect its legality?

These and other questions will be ones that we
and the other symposium participants will engage and debate in the coming
days.

Adam Cox
is Professor of Law at NYU School of Law and can be reached at
adambcox@nyu.edu. Cristina Rodriguez is Leighton Homer
Surbeck Professor of Law at Yale Law School and can be reached at
cristina.rodriguez@yale.edu.